Sunday, October 18, 2009

It occurs to me that we lawyers have the good fortune to be in constant contact with beginnings. Without being too cliched about the inception of a law firm, starting out is rife with opportunity and possibility. It can be a very heady feeling for almost every adventurer.... but lawyer? Lawyers have to deal with possibility and opportunity at every turn with a new client, new case, new transaction, new venture. Yet lawyers and lawyering are about promoting and establishing a sense of security and stability for clients... The appearance of justice being done is as important as the fact that justice is actually done, we are repeatedly told. And so, over time, principles of law, briefs in cases, clauses in contracts are akin to the well-worn rubber of tires over-used and now liable to slip at the first sight of drizzle on the pavement. Appearance can, you see, be just that...artifice, the look and feel of stability without the real underpinning of thought, time, imagination, pooling of resources and training acquired by all of us lawyers in law school, but long ago surrendered for the security of a specialty, expertise, and the power provided by a few choice clauses of which we are king or queen. Nowadays we expect only clients to come to us for those special needs and we refer other clients out. The law has gotten complicated and unwieldy. No, not really. The law still has a firm foundation and base to provide, but the application of it to an infinite number of branches above its roots, is starting to look more like the building above is much taller than the base can support? Each area of the law has sprouted new legs, and inhabits a large domain of its own, no matter how small an area it may be. Some legal fields overlap with others and force such attorneys into other industries and even other legal domains, but this is the exception. This means that in order to do a good enough job, lawyers must restrict their focus and professional training out of law school to one or two areas max.

And so, the law has become more constrained and restricted as a profession. Why should accountants have all the fun? Actually, the above analysis could probably be used on the acccounting profession as well. Hence, the slippage in that profession has lately been glaring. What is responsible for this focus? Specialization: supposed attention to minutaie, and expertise in one small domain, that in fact ends up providing the opposite result of rampant and unchecked corruption that no attention to minutaie has been able to prevent? I think there has been so much needless complication, and so much rise in cost of legal services that it does not make sense to charge clients to do the kind of thinking that is really necessary to do on every line of every contract as we once use to do. At $400 to $1200 an hour and sometimes more, how can one justify taking any longer than absolutely necessary to a client, unless the client is a large multinational, who is doing very well. Even in the latter case, that client most likely has an in house legal department for this type of work, figures out what contract language works for it, standardizes the same and starts doing as many deals to make as much money as possible and necessary as quickly as possible. Often it is the outside counsel that are brought in to do the more complicated legal thinking in situations not previously visited by in house counsel. Cross border issues are one such area. I know I routinely help out with this thinking and with contract language in this area. But I don't stop there.

I refuse to work with clients, unless the work involved is meaningful and in some ways even, inspiring. This may surprise lawyers especially. But even contract law, when it is done on behalf of companies that have the right attitude and want to change something either about themselves or the world we live in, from innovation in industry to innovation in communication and community can be inspiring. Choosing then to live with clients that are trying to find creative solutions to their problems, to the problems of their own or other communities, aligns with my vision of how to use all the resources in my tool box, from my six degrees (including 5 law degrees), to my experience as a lawyer on four continents to better lives and serve others while increasing my own vision of client needs' and legal services at large.

Starting out with each client then becomes a fascinating amalgam of opportunity and possibility for both the lawyer and her clients. My current situation of representing Madoff investors is no exception. Each investor is someone who I represent, not just as a lawyer, but as an advocate. I believe in recovery as a just cause because I know the context and the very different situations in which they find themselves. In the representation of businesses, there is much more advisory work relating to positioning of the product or service so that it optimally serves the community(ies) of users. As outside general counsel one becomes an integral part of the thinking machine of the company and its growth, be it through preventative compliance related work, or through business acumen and imagination, or through an acquisition strategy, or even litigation with appropriate ethical guidelines in play. As a litigator, the lawyer is much more specifically in a representative capacity for the client with regard to a particular issue. In some very famous cases, we have seen that lawyers can come to defend or struggle on behalf of countries, and entire communities in a role as advocate because a just solution cannot be found in a courtroom only. The powers that be and decide the fate of that community are larger and more politically based.

I was talking about beginnings and lawyering... about possibility and opportunity and the ability to use all one has in terms of resources. Now there is nothing wrong with going into the law because you want to do a specific job well. But I would ask everyone, not just lawyers to do what they are most passionate about and what most ignites them to use all of their capacities. Without passion, no matter what you are doing, you will not be awake doing it. That may be the most important thing of all... being awake on the job. I think right now clients have been paying lawyers and accountants that have been asleep at the job. Look around you as to what has happened around us with the financial crisis. This is of course not deliberate, it is systemic and systematic, a regurgitated impact of specialized complication, a kind of legal and legalized derivatives from which law firm machines can also be sustained just like so many other machines they must serve. Note this is a generalized comment without specific instances and take it for what it is. But I ask us all to think about how much sleeping our work requires us to do; and how little questioning our work requires of us.

Awakening to what it is you are doing can awaken you to what really needs to be done in new and different ways of your own creation. This requires actual input from you. You will keep using the ways you have been trained, almost by rote, to apply to the problem, but you may also open up to ways that a detective might by taking in every single relevant fact of which you are able to obtain knowledge. Then of course, you may not be the person most suited to attack the problem as you have now conceived it and may have to get help, and or refer the matter out, but you will be thinking on your feet based on present knowledge, fact and application of your training... that in itself is an adventure!

Saturday, October 10, 2009

President Obama won the Nobel Peace Prize and I heard some remarks about this. "What did he do," were the comments and thoughts I heard. I then read his own remarks at hearing of the news and they sounded right. It is not so much what he did do, but what America did in this election and in setting the platform for change that it has set with this administration that warranted such acknowledgement.

This administration is not getting everything right and perhaps in specific instances that can be disturbing. But I don't imagine anyone gets everything right, certainly not an entire administration... not by a long shot. What impresses me is the intention I hear beneath the rhetoric. The intention is right, in fact it is right on with what I consider all that is good and right. That is often hard to say much of the time when I hear words over the media. Now you and I may not agree with all that is on the platform, but you must give credit for effort. This President is trying really hard to get accomplished what he has said he would. Nine months in... you may not want him working on health care...but he said he would and he is. He appears to be working on the economy also.

Again, he may not get everything right.... but in my books he is getting an A for effort so far.

Is that what the Nobel is for.... no. I think the Nobel is not for great diplomacy either. I think the Nobel is for an amazing thing that happened in America recently that said something to the world about what was possible, but appeared impossible to the world. A man, born to an American woman but the child of a Kenyan man and an American woman, travelled to other countries, spoke other languages, learned about the world, worked very hard, and got himself educated, and sought to serve the public and ran for the senate and then for the presidency... and the American people chose their new leader based on merit, and that leader rose and keeps rising to the challenge and this must be acknowledged. I know I was stunned by it...as much as I hoped for it, because it makes possible for so many of us to do so many other things that we thought were denied to us because we are of color, or a woman, or any number of characteristics that may be used against us as a way to deny us the responsibility and power of our own merit.

There is no question that the world has gained from the example set by America and a new era has been ushered. We do not have many prizes to acknowledge this type of pathbreaking accomplishment... I guess the Nobel is one such.

Thursday, October 8, 2009

I got no response the first time so let's try again. I will give you a little more of me, let's see if you have something to give back.

I have never written a blog before. So, this is really an attempt to figure out what this new interactive form of communication is all about. I have read other blogs and they usually seem to have a specific topic and discuss different aspects of that topic. I suppose I could do something like that but for me it seems too stiff and defeats the point of the medium. This is not a newspaper article although I know it will be very informative at times once I get going. This is not an essay - that's been done, and keeps being done in other venues. This is something between a chat room (never been to one but I imagine it to be extremely interactive kind of like a busy sauna where people actually talk to each other instead of avoiding eye contact and any other kind of contact unless you are watching one of those movies with tough older corporate moguls who use the sauna for a power talk and big decision making) and a thought-piece, sometimes an article, with many authors.

I am one of those people who think that writing should involve the writer, in this case, many writers. For instance, I am a big fan ofP.J. Coetzee in Diary of a bad year or Slow Man... He is someone who does that better sometimes than I could have conceived of it in my fantasies. At the very least, I could invoke the post modern somewhat forced habit of establishing subject position. But like Coetzee, I think this is a bit passe. We really must move on and into the very real fusion of self in writing and law which is more "integrative," or "integrationist." Perhaps it will lead to more "integrity" in my writing, in my thought, in the way I practice law? If there is anything mildly appealing in form or substance here, and you are persuaded to ever return to further partake of my ramblings in this blog, and become remotely close to a regular, you will see me often come back to this theme of "integration."

Today, I want to tell you that the idea of writing a blog came to me from a movie my daughter and I went to see recently, Julie/julia. [For the blogger in that movie, blogging changed her life in almost every way. She became truer to herself every single day as she wrote and also better and more expanded as a person than she was the day before. What a goal!] In any case, my daughter and I were suppose to be accompanied by my son as well, but he was otherwise occupied. All three of us were very excited about the prospect of this film but the origin of this excitement did not occur to me until this minute.

When my children were fairly young, say 6 and 8 or in that range, I would impersonate Julia Child for them from her TV show as if I was actually on TV making a souffle or some recipe of hers. I did it because I thought she was funny, but I exaggerated her every action so as to elicit from my children the reaction that I knew would give me great pleasure and the incentive to keep going. My kids didn't just think I was funny. They were rolling on the floor, pangs of breathy screams emitting from their mouths that refused to close, as another make believe souffle plummeted and had to be trashed with the exclamation, oops! "Well you know we all make mistakes and you musn't be too hard on yourself," I would end.

I am not sure my kids ever saw the actual Julia Child TV show. We didn't have a TV while they were growing up. But then again, they would have been hungry for this curious appliance in any hotel room we may have visited on vacation. So there is a chance they did. Given the running Julia routine I had perfected with them, interest in the film was only logical. There may have been other incidental benefits too. My son, a senior at College now makes the best truffles from scratch this side of Belgium (I kid you not), and my daughter is an unabashed comedienne. I guess Julia had quite a profound impact on us.

It should not be surprising that as I become an empty nester, I am choosing to hold onto some special memories and weave out my takeaway from the movie that paid homage to her and her legacy. All good stories, and perhaps arguments too, have the thread of care, understanding, and even compelled curiosity that sews the hem of their beginning and end and sometimes the many pockets of memory in between without which continued enjoyment of their making would be lost. As I look back at that special time with my children, I am reminded that it would not have come back to me in this moment unless I was at a good place now. I love to write and this blog will give me a forum to grow my penmanship and thinking in the bright light of your glare.

What more could I ask? To speak of the law, and maybe its purposes. For instance, are we as lawyers coming close to answering the call of service the law demands of those privileged to serve? Is there any humour in service? "You've got to serve somebody," croons/rasps Bob Dylan. The work on the Madoff case makes me think a lot about service. I see so many people, not just myself give of themselves to help the devastated. Of course everyone wants recognition and compensation, but they also just want to help create a better way forward.

There will be so much to talk about with you, serious, funny, imaginative and fantastic. The law is capable of all this and more because it is an extension of human interaction, community, and all manifestations of the human mind, heart, body, and soul. And the point to this story... in case the story needs another point, is that the law starts with you! Hopefully an integrated you!

I am going to stop there for today. I was intentionally short yesterday and intentionally long today to see if giving you a little food for thought may start a conversation.

Monday, October 5, 2009

I am attorney for Harry Markopolos, the whistleblower in the Madoff case. I am an attorney with 22 years of experience in three different jurisdictions. I have recently launched my own law firm because I want to practice a different kind of lawyering, one that is open to a variety of experience in society and brings to bear my own amalgam of knowledge from a variety of cultures and laws. To effectively learn from the public's experience is essential to the way I want to practice law, and current technology enables this possibility. And so I am creating this blog to provide myself and you the public with a forum for our conversation.

I am not providing legal advice in this blog. Nor will I interact with any comment received in an attorney-client form or relationship within the blog. If you are a client and want to speak to me there is a confidential forum for our interaction on my website. You can also email me or call me. This is a forum for conversation with you the public; a way to provide you with resources, information from experts, my associates and colleagues, other law firms, finance and investment consultants, and government leaders from around the world who are trying to transform the current malaise.

I also want to use this as a public forum to air my thoughts and discuss issues relating to the law, and its transformation as we encounter others across borders, in other marketplaces, living through the same hell or heaven and places in between we may be experiencing. I want to think and talk about the repeated slaps of fraud and betrayal investors have recently experienced around the world. I am interested in the way investors may be dealing with such situations, partly of course because I have taken on some of these cases and I want to expand my analyses beyond the purely legal. I want to gain from your insight into what you may think is or is not related to the law in the situations with which you are grappling. Even investors who have not personally encountered fraud are skittish about the market and more distrusting of institutions and advisors. For me, it is important to have a sense of the situation from your point of view.

Without your input, a conversation will not occur. So I ask you to talk to me, and I will respond.